Zina Butler v. Housing Auth. County of La

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZINA BUTLER, No. 11-55806

Plaintiff-Appellant,

D.C. No.

v. 5:09-cv-00761-

MMM-E

NATIONAL COMMUNITY

RENAISSANCE OF CALIFORNIA, AKA

National Community Renaissance OPINION

Corp.,

Defendant,

and

HOUSING AUTHORITY OF THE

COUNTY OF LOS ANGELES; CITY OF

PALMDALE; OSCAR BARRAZA; AND

LEE D’ERRICO,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge

Argued and Submitted

June 2, 2014—Pasadena, California

Filed September 12, 2014

2 BUTLER V. NCRC

Before: Stephen S. Trott, Consuelo M. Callahan, Circuit

Judges, and Mark W. Bennett, District Judge.*

Opinion by Judge Bennett

SUMMARY**

Civil Rights/Civil Procedure

The panel affirmed the district court’s dismissal, on

statute of limitations grounds, of claims brought pursuant to

42 U.S.C. § 1983 challenging the constitutionally of a

warrantless search of plaintiff’s apartment by various actors.

The panel held that the district court did not err by

determining that the original complaint did not sufficiently

identify all the proper defendants and that plaintiff’s amended

complaints, adding appellees, did not relate back to the time

that plaintiff filed her original complaint. The panel held that

the amended complaints did not relate back under Cal. Civ.

P. Code § 474 because plaintiff was not ignorant of the

appellees’ names or identities at the time the original

complaint was filed. The panel further held that the amended

complaints did not relate back under Fed. R. Civ. P.

15(c)(1)(C) because plaintiff did not establish that any of the

appellees knew or should have known that her lawsuit would

*

The Honorable Mark W. Bennett, District Judge for the Northern

District of Iowa, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BUTLER V. NCRC 3

have been brought against them but for her mistake. The

panel further held that the district court did not err in

rejecting, at the pleading stage, plaintiff’s claim of equitable

tolling under California law.

COUNSEL

Jeremy B. Rosen (argued), Horvitz & Levy, L.L.P., Encino,

California; Andrew Wilhelm and Ashley Cook , certified law

students, Ninth Circuit Appellate Advocacy Clinic,

Pepperdine University School of Law, Malibu, California, for

Plaintiff-Appellant Zina Butler.

Toussaint S. Bailey (argued), Steven R. Orr, and Aaron C.

O’Dell, Richards, Watson & Gershon, P.C., Los Angeles,

California, for Defendants-Appellees City of Palmdale and

Oscar Barraza.

Nicole A. Davis Tinkham and Christian E. Foy Nagy, Collins

Collins Muir + Stewart, L.L.P. , South Pasadena, California,

for Defendants-Appellees Housing Authority of the County

of Los Angeles and Lee D’Errico.

4 BUTLER V. NCRC

OPINION

BENNETT, District Judge:

Plaintiff-appellant Zina Butler appeals from the district

court’s granting appellees’ motions to dismiss her 42 U.S.C.

§ 1983 action challenging the constitutionally of a warrantless

search of her apartment by various actors. The district court

held that Butler’s claims were untimely filed. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court’s determination of

whether a claim is barred by the statute of limitations. See

Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012), cert.

denied, 134 S. Ct. 76 (2013). Likewise, we review the district

court’s application of the relation-back doctrine under Federal

Rule of Civil Procedure 15(c) de novo. See Williams v.

Boeing Co., 517 F.3d 1120, 1132 (9th Cir. 2008).

I. BACKGROUND

A. The Pleadings

On April 17, 2009, Butler filed a one-page complaint, a

request to proceed in forma pauperis, and a request for an

attorney in federal district court. The caption of the

complaint named only National Community Renaissance

Corporation (“National CORE”) as a defendant. The

complaint alleged:

On April 18th 2007 apartment manager in

absence of a search warrant gave Section 8

investigator and City employee and Sheriff

deputies the keys to my apartment who then

BUTLER V. NCRC 5

entered without search warrant or consent

And began searching my apartment. Sheriff

deputies removed me from My home and

issued me a citation and then released me at

that point. And in that situation they violated

my 4th amendment right.

On April 22, 2009, Butler filed a first amended complaint.

The caption again named National CORE as a defendant and

added the Housing Authority of the County of Los Angeles

(“HACoLA”). The first amended complaint alleged:

On April 18th 2007 apartment manager in

absence of a search warrant gave Section 8

investigator and city employee and Sheriff

deputies the keys to my apartment who then

entered without search warrant or consent

And began searching my apartment. Sheriff

deputies removed me from My home and

issued me a citation and then released me at

that point. And in that situation they violated

my 4th AMENDMENT RIGHT.

I am adding Housing Authority To my

compliant [sic].

On May 15, 2009, the court sua sponte dismissed the first

amended complaint with leave to amend because “it [was]

unclear whom Plaintiff intends to sue.”

On June 17, 2009, Butler filed a second amended

complaint, again identifying National CORE and HACoLA

in the caption. In the “Statement of Facts,” Butler alleged the

following:

6 BUTLER V. NCRC

On April 18th 2007 Section 8 investigator Mr.

Derrico came to my apartment and knocked

on my door. I asked who is it and he said

Housing Authority investigator and I ask him

if he had a search warrant from my upstairs

window he said no and I told him that I was

not going to let him in then. So he came back

with the manager of National Renaissance

Corporation Elizabeth Freeman and Officers

McCormick, and Murphy from Palmdale

Sheriff Department and city employee Oscar

Barrza and then the manager Elizabeth

Freeman took the key and opened my door

and let all of thee [sic] above into my

apartment and they started searching my

apartment AFTER THEY STARTED

S E A R C H IN G M Y A P A R T M E N T

OFFICERS MCCORMICK, and MURPHY

took me to the car and wrote me a ticket for a

[sic] infraction and released me at that point

THEREFORE I WOULD LIKE TO SUE

PALMDALE SHERIFF DEPARTMENT,

NATIONAL RENAISSANCE

C O M M U N IT Y C O R P , H O U S IN G

AUTHORITY OF THE COUNTY OF L.A.

AND THE CITY OF PALMDALE

On July 17, 2009, the district court sua sponte dismissed

the second amended complaint with leave to amend. The

court observed, inter alia, that “[l]ike its predecessor, the

Second Amended Complaint is unclear whom Plaintiff

intends to sue.”

BUTLER V. NCRC 7

On August 12, 2009, Butler filed a third amended

complaint. National CORE, HACoLA, the City of Palmdale

(“Palmdale”), Oscar Barraza, in his individual capacity, and

“Mr Derrico”, in his individual capacity, are identified as

defendants in the caption. In the “Statement of Facts,” Butler

alleged that:

9. On April 18th 2007 Section 8 investigator

Mr Derrico came to my apartment and knock

[sic] on my door. I asked who is it and he

said Housing Authority investigator.

10. And I ask him if he had a search warrant

from my upstairs window. He said no and I

told him that I was not going to let him in.

11. So Mr Derrico went and got the manager

of National Renaissance Community

Corporation Elizabeth Freeman, City

Employee Oscar Barraza, and Sheriff

Deputies McCormick, and Murphy, and

officers from Housing authority whose names

I don’t know (John Doe’s). Mr Derrico then

told Elizabeth Freeman to open the door and

Ms Freeman took the key and opened the

door. Elizabeth Freeman gave me no notice

of entry and was acting in concert with

Housing Authority officers.

12. After opening my front door I was sitting

on the stair inside my apartment and an

officer from housing authority came up the

stairs towards me with his gun in his hand and

told me to go down stairs. The officer from

8 BUTLER V. NCRC

Housing Authority continued upstairs and

proceeded to search.

13. Mr. Derrico and Oscar Barraza, and other

officers from Housing Authority (John Doe’s)

entered and started searching my apartment.

I could see them searching my closet and then

some of the other officers from Housing

Authority sent into my kitchen. I asked why

were they searching my apartment.

14. By that time Palmdale Sheriff Deputies

Murphy, and McCormick entered into my

apartment and cuffed me then walked me to

there [sic] car and detained me in there [sic]

car for about 20 minutes and then cited me out

for an infraction and released me at that point.

15. While I was detained, the Housing

Authority officers Mr. Derrico, and City

Employee inspector Oscar Barraza continued

to search my apartment.

16. It is a custom of the Housing Authority to

illegally enter peoples [sic] homes who have

Section 8 housing vouchers.

17. I made a complaint with the City of

Palmdale on Jun [sic] 11 2007. See Exhibit

A. They denied my complaint.

18. As a result of this I suffered High blood

pressure and emotional Distress. I also had to

BUTLER V. NCRC 9

go to the doctor for my increase [sic] blood

pressure.

On August 20, 2009, Butler filed a proof of service

declaring that the third amended complaint was “personally

served” on HACoLA via a post office box in Santa Fe

Springs, California. That proof of service also indicated that

National CORE and Palmdale were personally served, but did

not indicate that D’Errico was served. On September 17,

2009, Butler filed a proof of service indicating that D’Errico

was personally served on August 18, 2009.

On September 8, 2009, Palmdale and Barraza filed a

Motion to Dismiss the third amended complaint. On

September 10, 2009, National CORE also filed a motion to

dismiss the third amended complaint. On January 13, 2010,

the court denied National CORE’s motion, but granted

Palmdale and Barraza’s motion and dismissed the third

amended complaint with leave to amend. The district court

concluded, inter alia, that Butler’s claims against Palmdale

and Barraza were untimely and did not relate back to any of

Butler’s prior pleadings.

On March 15, 2010, Butler filed a nineteen-page fourth

amended complaint. Butler again named as defendants

National CORE, HACoLA, Palmdale, as well as Oscar

Barraza and “Mr. Derrico” in their individual capacities.1

The core of Butler’s factual allegations were again the

warrantless search of her apartment on April 18, 2007. Butler

added details concerning the relationship between National

CORE, HACoLA, Palmdale, as well as her rental history with

1

This complaint, for the first time, listed “Lee D’Errico” as a defendant

rather than just “Mr. Derrico.”

10 BUTLER V. NCRC

HACoLA. Butler alleged that, “[i]n the week after the

search, [she] contacted HACoLA on approximately seven

different occasions and was informed that D’Errico had led

the investigation of her apartment.” Butler alleged that on

June 11, 2007, she filed a claim with Palmdale in which she

“accused Barazza [sic] of entering her apartment on April 18,

2007.” On June 28, 2007, Palmdale allegedly denied Butler’s

claim. The fourth amended complaint contained three claims

for relief: (1) a civil rights violation claim under 42 U.S.C.

§ 1983 against all defendants; (2) a breach of contract claim

against National CORE; and (3) a claim for declaratory relief

against all defendants.

Palmdale, Barraza, HACoLA and D’Errico filed motions

to dismiss asserting that Butler’s claims against them were

barred by the statute of limitations.

B. The District Court’s Decisions

The district court granted appellees’ motions and

dismissed Butler’s claims against Palmdale, Barraza,

HACoLA, and D’Errico with prejudice. The district court

first considered the timeliness of Butler’s claims against

HACoLA and D’Errico. The court found that the original

complaint did not sufficiently identify either HACoLA or

D’Errico as defendants. The court also found that Butler “did

not make any ‘mistake concerning the proper party’s identity’

of which Defendants were or should have been aware.”

Rather, the court concluded that Butler knew of HACoLA

and D’Errico’s existence, status, and roles at the time she

filed her original complaint, and that HACoLA and D’Errico

were aware, shortly after the search of Butler’s apartment,

that Butler knew of their existence and roles. Thus, the court

determined that Butler’s claims against HACoLA and

BUTLER V. NCRC 11

D’Errico did not relate back, under Federal Rule of Civil

Procedure 15(c)(1), to the time Butler filed her original

complaint. The court further concluded that Butler’s claims

against HACoLA and D’Errico did not relate back under

California law because Butler did not name any fictitious

defendants in her original complaint.

The court then turned its attention to the timeliness of

Butler’s claims against Palmdale and Barraza. The court first

noted that it had previously ruled, in its Memorandum and

Order of January 13, 2010, that Butler’s claims against

Palmdale and Barraza in her third amended complaint were

untimely and did not relate back to the date of the filing of

any of Butler’s earlier pleadings. The court found that

Butler’s claims against Palmdale and Barraza in her fourth

amended complaint were based on the same allegations

Butler made in her third amended complaint. The court

explained that neither the original complaint nor the first

amended complaint sufficiently identified Palmdale or

Barraza as defendants. The court also found that Butler knew

of Palmdale or Barraza’s existence, status, and roles in the

search of her apartment at the time she filed her tort claim

with Palmdale on June 11, 2007, and that, in light of that tort

claim, Palmdale and Barraza could not have believed that

Butler’s failure to name them in her original complaint was

the product of any “mistake” regarding their identities. The

court also determined that Butler’s claims against Palmdale

and Barraza did not relate back under California law because

Butler did not name any fictitious defendants in her original

complaint and Butler was not “plainly ignorant” of Palmdale

and Barraza’s identities at the time she filed her original

complaint.

12 BUTLER V. NCRC

Finally, the court addressed the issue of equitable tolling.

The court concluded that California’s equitable tolling

doctrine did not “rescue” Butler’s claims against Palmdale,

Barraza, HACoLA, and D’Errico. The court explained that,

at most, Butler’s tort claim with Palmdale tolled the statute of

limitations for the ten days it was pending. However, since

Butler did not name Palmdale or Barraza until the second

amended complaint, and did not name D’Errico until the third

amended complaint, tolling based on Butler’s tort claim did

not save her claims because both of those filings occurred

after the extended statute of limitations had expired. The

court further explained that because Butler had never filed a

tort claim against HACoLA, equitable tolling against

HACoLA was unwarranted. The court also determined that

Butler was not entitled to equitable tolling based on

“technical error” in her original complaint where she never

named Palmdale, Barraza, HACoLA, or D’Errico in that

pleading. Finally, the court rejected Butler’s argument that

she should be allowed to proceed with her claims because the

policy of deciding pro se federal civil rights cases on their

merits outweighed the policy underlying the statute of

limitations. The court found that, under California law, the

policy underlying the statute of limitations in favor of repose

and the policy favoring disposition of cases on their merits

were of equal merit.

The court concluded that Butler had failed to show that

California’s equitable tolling doctrine permitted her to amend

her lawsuit to add time-barred claims against new defendants.

Thus, the court held that Butler was not entitled to equitable

tolling and that the statute of limitations barred her claims

against Palmdale, Barraza, HACoLA, and D’Errico. The

court ordered that Butler’s case would proceed against

National CORE as the sole defendant.

BUTLER V. NCRC 13

II. LEGAL ANALYSIS

A. Applicable Standards

Section 1983 does not contain its own statute of

limitations. Without a federal limitations period, the federal

courts “‘apply the forum state’s statute of limitations for

personal injury actions, along with the forum state’s law

regarding tolling, including equitable tolling, except to the

extent any of these laws is inconsistent with federal law.’”

Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir.

2007) (quoting Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.

2004)); see Wilson v. Garcia, 471 U.S. 261, 279–80 (1985),

superceded by statute on other grounds, Judicial

Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat.

5114, as recognized in Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 377–80 (2004); see also Douglas v. Noelle, 567 F.3d

1103, 1109 (9th Cir. 2009) (“State law governs the statute of

limitations period for § 1983 suits and closely related

questions of tolling.”). California’s statute of limitations for

personal injury claims is two years. See CAL. CIV. P. CODE

§ 335.1; Cantella, 486 F.3d at 1132. But, in borrowing a

state statute of limitations for a federal cause of action, we

follow the Supreme Court’s direction to “borrow no more

than necessary.” West v. Conrail, 481 U.S. 35, 39 (1987).

B. Identification Of Defendants

Initially, Butler challenges the court’s determination that

she failed to properly name Palmdale, Barraza, HACoLA,

and D’Errico in her original complaint. Butler argues that she

sufficiently identified Palmdale, Barraza, HACoLA, and

D’Errico as defendants in the body of her original complaint

through her use of misnomers. The appellees dispute Butler’s

14 BUTLER V. NCRC

argument and contend that the court did not err in its

determination.

The court correctly rejected Butler’s argument. “[A]

party may be properly in a case if the allegations in the body

of the complaint make it plain that the party is intended as a

defendant.” Rice v. Hamilton Air Force Base Commissary,

720 F.2d 1082, 1085 (9th Cir. 1983). The allegations in the

body of Butler’s original complaint do not plainly indicate

that she intended any party, other than National Community

Renaissance Corporation (“National CORE”), to be a

defendant. Neither Palmdale nor HACoLA are mentioned

whatsoever in the body of the original complaint. Butler’s

allegations regarding her complaints to HACoLA and the

City in 2007 show that she knew Palmdale, HACoLA,

Barraza, and D’Errico’s identities by the time she filed her

original complaint. Thus, if Butler intended to name

Palmdale, HACoLA, Barraza, and D’Errico as defendants,

she could have done so with far more specificity. Yet, the

body of the original complaint contains no names whatsoever

of any individual or organization involved in the search of

Butler’s apartment. Under such circumstances, Butler did not

identify Palmdale, HACoLA, Barraza, or D’Errico as

defendants in her original complaint.

C. Governing Law On The Relation Back Of Claims

Butler argues that the court erred in concluding that her

amended complaints, naming Palmdale, HACoLA, Barraza,

and D’Errico as defendants, did not relate back to the date of

her original complaint. This issue requires us to determine

the controlling law—state or federal. Prior to the 1991

amendments to Federal Rule of Civil Procedure 15(c), this

court held that the relation back provisions of state law, rather

BUTLER V. NCRC 15

than Rule 15(c), govern a federal cause of action pursuant to

§ 1983. See Merritt v. Cnty. of L.A., 875 F.2d 765, 768 (9th

Cir. 1989); Cabrales v. Cnty. of L.A., 864 F.2d 1454, 1462–64

(9th Cir. 1988), vacated on other grounds, 490 U.S. 1087

(1989), decision reinstated on remand, 886 F.2d 235 (9th Cir.

1989). In Cabrales, this court held the relation back

provisions of state law, rather than Rule 15(c), govern a

federal cause of action pursuant to 42 U.S.C. § 1983.2 This

court concluded that California’s relation back provisions

constitute a substantive state policy that is applicable in

federal civil rights actions in which a state statute of

limitations governs. Id. at 1464; see Merritt, 875 F.2d at 768

n.5. As this court recognized in Merritt, “We reached this

determination despite the fact that substitution of the

additional defendants would have violated the notice

requirements of the federal rule. Under California relation

back rules, there is no notice-to-defendants requirement as in

the federal rule.” Merritt, 875 F.2d at 768 (citing Cabrales,

864 F.2d at 1463).

2

At the time, other federal circuit courts of appeals held that Rule 15(c)

applied in § 1983 cases. See, e.g., Hernandez Jimenez v. Calero Toledo,

604 F.2d 99, 100 (1st Cir. 1979); Gleason v. McBride, 869 F.2d 688, 693

(2d Cir. 1989); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986);

Wood v. Worachek, 618 F.2d 1225, 1229 (7th Cir. 1980); McCurry v.

Allen, 688 F.2d 581, 584–85 (8th Cir. 1982).

16 BUTLER V. NCRC

The Supreme Court amended Rule 15(c) in 1991.3 We

conclude that the 1991 amendment superseded Cabrales and

Merritt to the extent that they hold that state law exclusively

governs the relation back of amendments in § 1983 cases. See

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc). As amended, Rule 15(c)(1) currently provides:

(1) When an Amendment Relates Back. An

amendment to a pleading relates back to

the date of the original pleading when:

(A) the law that provides the

applicable statute of limitations

allows relation back;

3

Prior to the 1991 amendments, Rule 15(c) provided in pertinent part:

(c) Relation Back of Amendments. Whenever

the claim or defense asserted in the amended pleading

arose out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original

pleading, the amendment relates back to the date of the

original pleading. An amendment changing the party

against whom a claim is asserted relates back if the

foregoing provision is satisfied and, within the period

provided by law for commencing the action against the

party to be brought in by amendment, that party (1) has

received such notice of the institution of the action that

the party will not be prejudiced in maintaining a

defense on the merits, and (2) knew or should have

known that, but for a mistake concerning the identity of

the proper party, the action would have been brought

against the party.

FED. R. CIV. P. 15(c) (1987); see Martell v. Trilogy Ltd., 872 F.2d 322,

323–24 (9th Cir. 1989).

BUTLER V. NCRC 17

(B) the amendment asserts a claim or

defense that arose out of the

conduct, transaction, or

occurrence set out—or attempted

to be set out—in the original

pleading; or

(C) the amendment changes the party

or the naming of the party against

whom a claim is asserted, if Rule

15(c)(1)(B) is satisfied and if,

within the period provided by

Rule 4(m) for serving the

summons and complaint, the party

to be brought in by amendment:

(i) received such notice of the

action that it will not be

prejudiced in defending on the

merits; and

(ii) knew or should have known

that the action would have

been brought against it, but for

a mistake concerning the

proper party’s identity.

FED. R. CIV. P. 15(c)(1) (2014).

The advisory committee notes accompanying this

paragraph state that the provision “is intended to make it clear

that the rule does not apply to preclude any relation back that

may be permitted under the applicable limitations law.” FED.

18 BUTLER V. NCRC

R. CIV. P. 15(c)(1) advisory committee notes (1991). The

committee notes further provide:

Generally, the applicable limitations law will

be state law. If federal jurisdiction is based

on the citizenship of the parties, the primary

reference is the law of the state in which the

district court sits. Whatever may be the

controlling body of limitations law, if that law

affords a more forgiving principle of relation

back than the one provided in this rule, it

should be available to save the claim.

Id. Thus, Rule 15(c)(1) incorporates the relation back rules

of the law of a state when that state’s law provides the

applicable statute of limitations and is more lenient. As a

result, if an amendment relates back under the state law that

provides the applicable statute of limitations, that amendment

relates back under Rule 15(c)(1) even if the amendment

would not otherwise relate back under the federal rules. See

6A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND

PROCEDURE § 1503 (2d ed. Supp. 2001) (noting that “[i]n

1991, Rule 15(c) was amended to clarify that relation back

may be permitted even if it does not meet the standards of the

federal rule if it would be permitted under the applicable

limitations law”).4 Applying Rule 15(c) to relation back

4

The 1991 amendment to Rule 15(c) also changed the time in which a

new defendant must have notice of the action and have knowledge that the

action would have been brought against that defendant but for the

plaintiff’s mistake. The prior version of Rule 15(c) required notice and

knowledge “within the period provided by law for commencing the action

against the party to be brought in by amendment. . . .” FED. R. CIV. P.

15(c) (1987). As amended, the notice time was extended to the 120 days

provided by Rule 4(m). See FED. R. CIV. P. 15(c) advisory committee

BUTLER V. NCRC 19

issues in § 1983 actions comports with the results in Cabrales

and Merritt, namely, that in some circumstances a plaintiff

may be entitled to the benefit of state law relation back rules

if those are more generous than Rule 15(c). See Merritt,

875 F.2d at 768; Cabrales, 864 F.2d at 1463. Furthermore,

the general purpose of the Federal Rules of Civil Procedure

is “to minimize technical obstacles to a determination of the

controversy on its merits.’” G. F. Co. v. Pan Ocean Shipping

Co., 23 F.3d 1498, 1502 (9th Cir. 1994) (quoting United

States ex rel. Atkins v. Reiten, 313 F.2d 673, 675 (9th Cir.

1963)). This purpose is served by deferring to the more

permissive law, state or federal, which allows an amendment

to relate back.

Finally, applying Rule 15(c) brings the law of this circuit

into conformity with (1) the Supreme Court’s order that Rule

15(c) “shall take effect on December 1, 1991, and shall

govern all proceedings in civil actions thereafter

commenced,” 134 F.R.D. 525 (1991) (emphasis added), and

(2) the law of our sister circuits on this issue. Currently,

other federal circuit courts of appeals uniformly hold that the

relation back provision of Rule 15(c) applies in federal civil

cases.5 See Hogan v. Fischer, 738 F.3d 509, 517 (2nd Cir.

2013); Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 777 (3d

Cir. 2000); Robison v. Clipse, 602 F.3d 605, 607 (4th Cir.

2010); Crostley v. Lamar Cnty., Tex., 717 F.3d 410, 421 (5th

Cir. 2013); Hall v. Spencer Cnty., Ky., 583 F.3d 930, 934 (6th

notes (1991) (stating that the intent of the change was to overrule

Schiavone v. Fortune, 477 U.S. 21 (1986)).

5

In one post-1991 decision, this court has already applied Rule 15(c) in

a § 1983 action. See Eaglesmith v. Ward, 73 F.3d 857, 860 (9th Cir.

1995).

20 BUTLER V. NCRC

Cir. 2009); Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir.

2008); Foulk v. Charrier, 262 F.3d 687, 696 (8th Cir. 2001);

Focus on the Family v. Pinellas Suncoast Transit Auth.,

344 F.3d 1263, 1275–76 (11th Cir. 2003).

We, therefore, will review Butler’s amendments under

Rule 15(c). In this case, because the limitations period

derives from state law, Rule 15(c)(1) requires us to consider

both federal and state law and employ whichever affords the

“more permissive” relation back standard. See Coons v.

Indus. Knife Co., 620 F.3d 38, 42 (1st Cir. 2010) (“We have

described the choice between these two provisions as ‘a one-

way ratchet,’ meaning that a party is entitled to invoke the

more permissive relation back rule, whether that is the state

rule or the federal rule set out in Rule 15(c)(1)(C).”); Hogan,

738 F.3d at 518 (“Rule 15(c)(1)(A) instructs courts, then, to

look to the entire body of limitations law that provides the

applicable statute of limitations. . . . Thus, under Rule

15(c)(1)(A), we must determine if New York state law

provides a ‘more forgiving principle of relation back’ in the

John Doe context, compared to the federal relation back

doctrine under Rule 15(c)(1)(C).” ).

D. Application Of Relation Back Laws

1. Relation back under California law

California law provides the applicable statute of

limitations here. Amendments of pleadings under California

law are generally governed by California Civil Procedure

BUTLER V. NCRC 21

Code § 473(a)(1).6 See Bd. of Trs. of Leland Stanford Jr.

Univ. v. Superior Ct., 57 Cal. Rptr. 3d 755, 761–62 (Cal. Ct.

App. 2007). Section 473(a)(1) does not contain any express

provision for relation back of amendments, and California

courts have held that it “does not authorize the addition of a

party for the first time whom the plaintiff failed to name in

the first instance.” Kerr-McGee Chem. Corp. v. Superior Ct.,

206 Cal. Rptr. 654, 656 (Cal. Ct. App. 1984). Under

California Civil Procedure Code § 474, however, California

courts have recognized that “where an amendment does not

add a ‘new’ defendant, but simply corrects a misnomer by

which an ‘old’ defendant was sued, case law recognizes an

exception to the general rule of no relation back.”7 Hawkins

v. Pac. Coast Bldg. Prods., Inc., 22 Cal. Rptr. 3d 453, 457

6

Section 473(a)(1) provides in relevant part that:

The court may, in furtherance of justice, and on any

terms as may be proper, allow a party to amend any

pleading or proceeding by adding or striking out the

name of any party, or by correcting a mistake in the

name of a party, or a mistake in any other respect. . . .

CAL. CIV. P. CODE § 473(a)(1).

7

Section 474 provides in pertinent part that:

When the plaintiff is ignorant of the name of a

defendant, he must state that fact in the complaint, or

the affidavit if the action is commenced by affidavit,

and such defendant may be designated in any pleading

or proceeding by any name, and when his true name is

discovered, the pleading or proceeding must be

amended accordingly. . . .

CAL. CIV. P. CODE § 474.

22 BUTLER V. NCRC

(Cal. Ct. App. 2004). The explanation for this exception is

that:

“[T]he general rule supplies no litmus to

differentiate between erroneous description

and change of identity. It ignores the

difference between a plaintiff who has

committed an excusable mistake and one who

seeks a free option among potential liability

targets after the statute has run; neither does it

consider modern business practices, which

often divide integrated business operations—

if only for tax purposes—among a group of

artificial legal entities. To accommodate the

latter factors, an ‘exception to the general

rule’ has been formulated, which permits

correction where the plaintiff has committed

an excusable mistake attributable to dual

entities with strikingly similar business names

or to the use of fictitious names.”

Id. (quoting Mayberry v. Coca Cola Bottling Co. of

Sacramento, 53 Cal. Rptr. 317, 319–20 (Cal. Ct. App. 1966)).

For § 474 to apply, however, the plaintiff must be “genuinely

ignorant” of the defendant’s identity at the time the original

complaint is filed. Woo v. Superior Court, 89 Cal. Rptr. 2d

20, 25 (Cal. Ct. App. 1999).

Butler argues that the court erred in determining that her

amendments did not relate back. She contends that her

amendments should have related back because the

amendments merely corrected misnomers she used in lieu of

the appellees’ names in her original complaint. The appellees

contend that the court correctly looked to California Civil

BUTLER V. NCRC 23

Procedure Code § 474 in determining whether Butler’s

amended complaints related back and in concluding that

Butler’s amendments did not relate back because Butler was

not “ignorant” of their identities when she filed her original

complaint.

The record supports the district court’s finding that Butler

was not “generally ignorant” of the identities of Palmdale,

Barraza, HACoLA, or D’Errico when she filed her original

complaint. Butler alleged that she had contacted HACoLA

within a week of the search, learned D’Errico’s name, and

subsequently spoke to him twice. Likewise, Butler alleged

that she submitted a tort claim to Palmdale on June 11, 2007,

in which she accused Barraza of wrongfully entering her

apartment on April 18, 2007. Accordingly, because Butler

was not ignorant of the appellees’ names or identities at the

time the original complaint was filed, those amendments do

not relate back under § 474. See Woo, 89 Cal. Rptr. 2d at 25.

Accordingly, the court correctly concluded that Butler’s

amended complaints adding appellees did not relate back

under § 474. See id.

2. Relation back under Federal Rule of Civil

Procedure 15

Rule 15(c)(1)(C) provides the federal standard for

whether a pleading relates back. See Krupski v. Costa

Crociere S.p.A., 560 U.S. 538, 541 (2010) (“Rule 15(c) of the

Federal Rules of Civil Procedure governs when an amended

pleading ‘relates back’ to the date of a timely filed original

pleading and is thus itself timely even though it was filed

outside an applicable statute of limitations.”). In order for an

amended complaint to relate back under Rule 15(c)(1)(C), the

following conditions must be met: “(1) the basic claim must

24 BUTLER V. NCRC

have arisen out of the conduct set forth in the original

pleading; (2) the party to be brought in must have received

such notice that it will not be prejudiced in maintaining its

defense; (3) that party must or should have known that, but

for a mistake concerning identity, the action would have been

brought against it.” Schiavone v. Fortune, 477 U.S. 21, 29

(1986). Additionally, the second and third requirements must

have been fulfilled within 120 days after the original

complaint is filed, as prescribed by Federal Rule of Civil

Procedure 4(m). See Hogan, 738 F.3d at 517 (indicating that

the fourth requirement is met when “‘the second and third

criteria are fulfilled within 120 days of the filing of the

original complaint, and . . . the original complaint [was] filed

within the limitations period.’”) (quoting Barrow v.

Wethersfield Police Dept., 66 F.3d 466, 468–69 (2d Cir.

1995)).

There is no dispute that the first two requirements were

met. The dispute lies with the third requirement, that the

appellees “knew or should have known that the action would

have been brought against [them], but for a mistake

concerning the proper party’s identity.” FED. R. CIV. P.

15(c)(1)(C)(ii) (emphasis added). The United States Supreme

Court construed Rule 15(c)(1) (C)(ii) in Krupski, 560 U.S.

538. In Krupski, a cruise ship passenger sued for injuries

suffered on the ship. Id. at 541–42. The complaint named

the marketing agent for the carrier as the defendant, rather

than the carrier. Id. at 543. After the statute of limitations

had run, she sought to amend her complaint under Rule

15(c)(1)(C) to state her claim against the carrier. Id. at 544.

The Eleventh Circuit Court of Appeals ruled that the

proposed amendment did not relate back because the plaintiff

was made aware of the existence of the correct entity prior to

the expiration of the statute of limitations. Id. at 546. In

BUTLER V. NCRC 25

reversing, the Court held: “relation back under Rule

15(c)(1)(C) depends on what the party to be added knew or

should have known, not on the amending party’s knowledge.”

Id. at 541. The Court went on to explain that:

[b]y focusing on [plaintiff’s] knowledge, the

Court of Appeals chose the wrong starting

point. The question under Rule

15(c)(1)(C)(ii) is not whether [plaintiff] knew

or should have known the identity of [the

carrier] as the proper defendant, but whether

[the carrier] knew or should have known that

it would have been named as a defendant but

for an error. Rule 15(c)(1)(C)(ii) asks what

the prospective defendant knew or should

have known during the Rule 4(m) period, not

what the plaintiff knew or should have known

at the time of filing her original complaint.

Id. at 548.

We conclude that the district court correctly held that

Butler did not establish that any of the appellees knew or

should have known that her lawsuit would have been brought

against them but for her mistake. Butler points to her timely

original complaint and tort claim she made with Palmdale

regarding the search of her apartment in which she named

Barraza. Butler argues that her actions sufficiently alerted

appellees that she intended to sue them. Butler’s argument is

flawed. First, the text of her original complaint, in which she

identified National CORE as the sole defendant, would not

have alerted any of the appellees that Butler intended to sue

them. As discussed above, the body of the complaint

contains no names whatsoever of any individual or

26 BUTLER V. NCRC

organization involved in the search of Butler’s apartment. In

addition, other than identifying the date of the search, the

body of the original complaint offers no clues as to the

location of Butler’s apartment. The address of Butler’s

apartment is not mentioned, nor is the city, county, or even

state where that apartment is located. This is significant.

Without Palmdale, HACoLA, or any of the individual actors

being identified by name, the complaint’s bare references to

“City employee” is meaningless. Butler could be referring to

any city employee in any city where National CORE

maintains an apartment. Similarly, the vague references to

“Section 8 investigator” did nothing to apprise either

HACoLA or D’Errico that Butler intended to sue them.

Again, Butler could be referring to a “Section 8 investigator”

in any county where National CORE maintains an apartment.

Butler’s 2007 tort claim against Palmdale did next to nothing

to apprise either Palmdale or Barraza that Butler’s 2009

lawsuit would have been brought against them but for

Butler’s mistake. The short answer here is that there is no

nexus between the two events that would have alerted

Palmdale or Barraza about Butler’s intent to sue them in

2009. Therefore, the court correctly concluded that Butler’s

amended complaints, adding Appellees, did not relate back

under Rule 15(c)(1)(C).8

8

Butler also contends that the court should have tolled the 120-day

period for service of the summons and complaint, under Federal Rule of

Civil Procedure 4(m), while it screened her in forma pauperis complaints.

Other federal circuit courts of appeals have held that the 120-day service

period is tolled until the court screens a plaintiff’s in forma pauperis

complaint and authorizes service of process. See Robinson v. Clipse,

602 F.3d 605, 608 (4th Cir. 2010); Urrutia v. Harrisburg Cnty. Police

Dep’t, 91 F.3d 451, 459 (3d Cir. 1996); see also Paulk v. Dep’t of the Air

Force, 830 F.2d 79, 83 (7th Cir. 1987) (holding that a motion to proceed

in forma pauperis tolled the statute of limitations during the pendency of

BUTLER V. NCRC 27

E. Equitable Tolling

Butler also contends that the court improperly resolved

her claim of equitable tolling on the pleadings. We conclude

that the court could determine equitable tolling at the

pleading stage here since Butler did not alert the court to the

existence of a claim form she filed with the County of Los

Angeles or the county’s denial of such a claim. As a result,

nothing prevented the court from ruling on the applicability

of California’s equitable tolling at the pleading stage.

The court also did not err in rejecting Butler’s claim of

equitable tolling under California law. We borrow our rules

for equitable tolling from the forum state, California. See

Hardin v. Straub, 490 U.S. 536, 539 (1989). Under

California law, equitable tolling “reliev[es] plaintiff from the

bar of a limitations statute when, possessing several legal

remedies he, reasonably and in good faith, pursues one

designed to lessen the extent of his injuries or damage.”

Addison v. State, 578 P.2d 941, 943 (Cal. 1978). The

California Supreme Court has reasoned that the primary

purpose of a limitations statute is to “‘(prevent) surprises

through the revival of claims that have been allowed to

slumber until evidence has been lost, memories have faded,

and witnesses have disappeared.’” Elkins v. Derby, 525 P.2d

81, 86 (Cal. 1974) (footnote omitted and quoting Order of

R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342,

348–49 (1942)). This primary purpose is “normally satisfied

the § 1915 motion). Because Butler did not raise this issue before the

court, we consider the argument forfeited. See Art Attacks Ink, LLC v.

MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir. 2009); Allen v. Ornoski,

435 F.3d 946, 960 (9th Cir. 2006).

28 BUTLER V. NCRC

when the defendant receives timely notification of the first of

two proceedings.” Elkins, 525 P.2d at 85 n.3.

The district court correctly noted that under California’s

test for equitable tolling, a plaintiff must establish “‘timely

notice, and lack of prejudice, to the defendant, and reasonable

and good faith conduct on the part of the plaintiff.’”

McDonald v. Antelope Valley Cmty. Coll. Dist., 194 P.3d

1026, 1033 (Cal. 2008) (quoting Addison v. California,

578 P.2d 941, 943–44 (Cal. 1978)). The record supports the

district court’s finding that, at most, Butler’s tort claims

against Palmdale and Barraza were tolled for the ten days her

tort claim was pending with Palmdale, but, even with this

tolling, Butler’s amended complaints were untimely.

HACoLA and D’Errico are on different footing. As we

noted above, Butler never asserted before the court that she

had filed a civil complaint with HACoLA. Thus, the court

correctly concluded that because Butler had never filed a tort

claim against HACoLA, equitable tolling against HACoLA

was unwarranted. See McDonald, 194 P.3d at 102 n.2

(pointing out that the timely notice requirement looks to

whether a first claim was filed within the statutory period).

III. CONCLUSION

Because the district court committed no error in its

determination that Butler’s claims are time-barred, we affirm.

AFFIRMED.